Substitute Decisions Act, 1992, S.O. 1992, c. 30 (Historical version for the period April 11, 2022 to May 17, 2023)

JurisdictionOntario
Coming into Force11 April 2022
End of Effective Date17 May 2023
Statushistorical

Substitute Decisions Act, 1992

S.O. 1992, CHAPTER 30

Consolidation Period: From April 11, 2022 to the e-Laws currency date.

Last amendment: 2021, c. 39, Sched. 2, s. 27.

CONTENTS

General

Interpretation

1 (1) In this Act,

“accessible format” may include, but is not limited to, large print, recorded audio and electronic formats, braille and other formats usable by persons with disabilities, within the meaning of the Accessibility for Ontarians with Disabilities Act, 2005; (“format accessible”)

“assessor” means a member of a class of persons who are designated by the regulations as being qualified to do assessments of capacity; (“évaluateur”)

“capable” means mentally capable, and “capacity” has a corresponding meaning; (“capable”, “capacité”)

“controlled-access residence” means premises, other than a facility, where one or more persons live and that are operated for remuneration by a person who controls access to the premises; (“résidence à accès contrôlé”)

“court” means the Superior Court of Justice; (“tribunal”)

“dependant” means a person to whom another has an obligation to provide support; (“personne à charge”)

“facility” means,

(a) a facility governed or funded under an Act mentioned in the Schedule,

(a.1) a facility that is a supported group living residence or an intensive support residence under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008,

(b) police detention facilities provided by a municipality under the Police Services Act,

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (b) of the definition of “facility” in subsection 1 (1) of the Act is repealed. (See: 2019, c. 1, Sched. 4, s. 57 (1))

(c) a detention facility maintained under section 16.1 of the Police Services Act, or

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (c) of the definition of “facility” in subsection 1 (1) of the Act is repealed. (See: 2019, c. 1, Sched. 4, s. 57 (1))

(d) a prescribed facility; (“établissement”)

“incapable” means mentally incapable, and “incapacity” has a corresponding meaning; (“incapable”, “incapacité”)

“partner” means,

(a) Repealed: 2005, c. 5, s. 65 (2).

(b) either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons’ lives; (“partenaire”)

“prescribed” means prescribed by the regulations; (“prescrit”)

“psychiatric facility” has the same meaning as in the Mental Health Act; (“établissement psychiatrique”)

“regulations” means the regulations made under this Act; (“règlements”)

“spouse” means a person,

(a) to whom the person is married, or

(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,

(i) have cohabited for at least one year,

(ii) are together the parents of a child, or

(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act; (“conjoint”)

“will” has the same meaning as in the Succession Law Reform Act. (“testament”) 1992, c. 30, s. 1 (1); 1996, c. 2, s. 3 (1-5); 2002, c. 17, Sched. F, Table; 2002, c. 18, Sched. A, s. 20 (1, 2); 2005, c. 5, s. 65 (1-3); 2008, c. 14, s. 59 (1); 2009, c. 33, Sched. 8, s. 16; 2016, c. 5, Sched. 27, s. 1.

(2) Repealed: 2002, c. 18, Sched. A, s. 20 (3).

Relatives

(2.1) For the purposes of this Act, a relative includes a person related to another person by marriage or adoption. 2016, c. 23, s. 70 (1).

Meaning of “explain”

(3) A person whom this Act requires to explain a matter satisfies that requirement by explaining the matter to the best of his or her ability and in a manner that addresses the special needs of the person receiving the explanation, whether that person understands it or not. 1992, c. 30, s. 1 (3); 1996, c. 2, s. 3 (7).

Section Amendments with date in force (d/m/y)

1992, c. 30, s. 1 (1); 1996, c. 2, s. 3 (1-7) - 29/03/1996; 1998

2002, c. 17, Sched. F, Table - 01/01/2003; 2002, c. 18, Sched. A, s. 20 (1-3) - 26/11/2002

2005, c. 5, s. 65 (1-3) - 09/03/2005

2008, c. 14, s. 59 (1) - 01/01/2011

2009, c. 33, Sched. 8, s. 16 - 01/01/2011

2016, c. 5, Sched. 27, s. 1 - 19/04/2016; 2016, c. 23, s. 70 (1) - 01/01/2017

2018, c. 3, Sched. 5, s. 59 (1) - no effect - see 2019, c. 1, Sched. 3, s. 5 - 26/03/2019

2019, c. 1, Sched. 4, s. 57 (1) - not in force

Presumption of capacity

2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract. 1992, c. 30, s. 2 (1).

Same

(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care. 1992, c. 30, s. 2 (2).

Exception

(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be. 1992, c. 30, s. 2 (3).

Onus of proof, contracts and gifts

(4) In a proceeding in respect of a contract entered into or a gift made by a person while his or her property is under guardianship, or within one year before the creation of the guardianship, the onus of proof that the other person who entered into the contract or received the gift did not have reasonable grounds to believe the person incapable is on that other person. 1992, c. 30, s. 2 (4).

Counsel for person whose capacity is in issue

3 (1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,

(a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and

(b) the person shall be deemed to have capacity to retain and instruct counsel. 1992, c. 30, s. 3 (1).

Responsibility for legal fees

(2) If legal representation is provided for a person in accordance with clause (1) (a) and the person is not eligible to receive comparable legal aid services under the Legal Aid Services Act, 2020 in connection with the proceeding, the person is responsible for the legal fees. 1992, c. 30, s. 3 (2); 1998, c. 26, s. 108; 2020, c. 11, Sched. 15, s. 59.

Same

(3) Nothing in subsection (2) affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be sought on behalf of the person by,

(a) the person’s guardian of property; or

(b) the person’s attorney under a continuing power of attorney for property. 2009, c. 33, Sched. 2, s. 71 (1).

Section Amendments with date in force (d/m/y)

1998, c. 26, s. 108 - 01/04/1999

2009, c. 33, Sched. 2, s. 71 (1) - 15/12/2009

2020, c. 11, Sched. 15, s. 59 - 18/10/2021

Remote witnessing of powers of attorney

3.1 (1) In this section,

“audio-visual communication technology” means any electronic method of communication which allows participants to see, hear and communicate with one another in real time. 2021, c. 4, Sched. 8, s. 1 (2).

Permitted use of audio-visual communication technology

(2) A requirement under this Act that a power of attorney be executed in the presence of witnesses may be satisfied through the use of audio-visual communication technology, if,

(a) at least one person who is acting as a witness is a licensee within the meaning of the Law Society Act at the time;

(b) the signatures required by this Act are contemporaneously made; and

(c) the prescribed requirements, if any, are met. 2021, c. 4, Sched. 8, s. 1 (2).

Counterpart signing

(3) For the purposes of clause (2) (b), the signatures required by this Act may, subject to any prescribed requirements, be made by signing complete, identical copies of the power of attorney in counterpart, which shall together constitute the power of attorney. 2021, c. 4, Sched. 8, s. 1 (2).

Same

(4) For the purposes of subsection (3), copies of a power of attorney are identical even if there are minor, non-substantive differences in format or layout between the copies. 2021, c. 4, Sched. 8, s. 1 (1).

Revocation

(5) For greater certainty, this section applies with necessary modifications with respect to the revocation of a power of attorney under this Act. 2021, c. 4, Sched. 8, s. 1 (3).

Section Amendments with date in force (d/m/y)

2021, c. 4, Sched. 8, s. 1 (1) - 07/04/2020; 2021, c. 4, Sched. 8, s. 1 (2, 3) - 20/05/2021

PART I
PROPERTY

General

Application of Part

4 This Part applies to decisions on behalf of persons who are at least eighteen years old. 1992, c. 30, s. 4.

Age

5 To exercise a power of decision under this Part on behalf of another person, a person must be at least eighteen years old. 1992, c. 30, s. 5.

Incapacity to manage property

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.

Continuing Powers of Attorney for Property

Continuing power of attorney for property

7 (1) A power of attorney for property is a continuing power of attorney if,

(a) it states that it is a continuing power of attorney; or

(b) it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property. 1996, c. 2, s. 4 (1).

Note: Subsection 7 (1), as re-enacted by the Statutes of Ontario, 1996, chapter 2, subsection 4 (1), applies to powers of attorney given before or after March 29, 1996. See: 1996, c. 2, s. 4 (5).

Same

(2) The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if...

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